by Scott Van Der Hyde, Contributor

A recent 4th Circuit opinion has highlighted a possible conflict that exists between the National Voter Registration Acts (NVRA) transparency provisions and concerns over voter privacy.  In Project Vote v. Young, the 4th Circuit attempted to resolve a conflict between the NVRA’s requirement that states make available for public review records pertaining to the implementation of voter registration programs and activities, and a Virginia law that prohibits disclosing many voter registration records.  The court ultimately resolved this issue in favor of the NVRA’s disclosure requirement.  While resolving the issue in this particular case, the court’s decision has the potential to raise new issues in terms of what must be disclosed and gives rise to a number of privacy concerns.

The primary language of the NVRA that is at conflict in this case comes from Section 8(i)(1) and says, “Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters….”  Virginia argues that the language of this provision does not apply to completed voter registration forms, or to rejected voter registration forms, but instead only applies to programs and activities related to purging the voter lists.  The court does not accept this argument saying instead that the plain language of the provision indicates all programs and activities meant to ensure accurate and current voter lists.  The court further argues that voter registration forms would fall into this category because filling out and turning in a registration form is the way in which voters make it onto these lists, and it is important to be able to review these documents to ensure that eligible voters are not being kept off the lists.  This argument makes sense with reference to voter forms, but one possible problem with the court’s ruling is that it does not seem to give a standard for what type of record concerns the implementation of these programs and activities.  This may lead to further problems in deciding which records must be kept and made available.  One example of this is absentee ballots that require voters to write in a reason for why they are voting absentee.  According to the court’s reading, it may be possible to argue that these would also have to be disclosed because they can be used to determine if an individual voter should have been eligible to vote absentee.

The other major issue that arises in this case has to do with privacy.  The court does a good job of spelling out the two interests that are at conflict in this case.  On one side of the conflict is the interest of voters over transparency in voter registration and maintaining programs to ensure that they are operating fairly and effectively.  On the other side is the interest of the state to protect the privacy of individuals.  Virginia argues that the state’s interest in protecting the privacy of individuals allows them to refuse the disclosure of voter registration forms that contain a person’s private information.  The court recognizes the state’s interest in protecting privacy, but says that ultimately the balance between privacy and transparency is for the legislature to decide.  The court also seems less concerned with the possible threat to privacy from voter registration forms because the lower court indicated that the forms must be disclosed with the social security number redacted.

The court’s holding on the issue of privacy is perhaps more concerning than the other issue in this case.  While the court may have a legitimate argument that the balance between privacy and transparency should be left to the legislature, it does not seem to fully appreciate the real risk to privacy that these forms pose.  The court seemed satisfied that if an individual’s social security number does not appear on the form, that will be enough to protect their privacy.  This view does not recognize the real privacy concerns that exist today.  These forms also contain a person’s name, address, date of birth, and many other forms of personal information that can be used to invade someone’s privacy.  This is especially true with technology making it easier to find personal information.  The idea that a social security number is required to invade someone’s privacy does not recognize the reality of today’s world.


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